African Human Rights Research Articles

Structural Interdictics for Environmental Rights Violations? South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021)*

Structural Interdictics for Environmental Rights Violations? South African Human Rights Commission v Msunduzi Local Municipality (8407/2020P) [2021] ZAKZPHC 35 (17 June 2021)*

The African Human Rights Perspectives Through the Lense of Oral Narratives

Human rights existed in African tradition for societal order and for community responsibility of success and failures. People enjoyed freedom and preserved freedom according to community beliefs and customs. Advocacy was expressed through singing, drama, storytelling and assignment of roles based on age gender and ability. This paper unfolds human rights advocacy oral narratives. Hausa dated as far as BC 14th or 15th Century Arabic writing with the first poets Ibn al- Sabbagh and Muhammadual- Barnawi, other writers of the time were Abdullahi Sikka and Shekh Jibril ibn Umar. The first novels written in Hausa were the result of a competition launched in 1933 by the Translation Bureau in northern Nigeria. One year later the bureau published Muhammadu Bello’s Gandoki, in which its hero, Gandoki, struggles against the British colonial regime. Bello does in Gandoki what many writers were doing in other parts of Africa during this period: he experiments with form and content. His novel blends the Hausa oral tradition and the novel, resulting in a story patterned on the heroic cycle; it also introduces a strong thread of Islamic history. Didactic elements, however, were awkwardly interposed and severely dilute Gandoki’s aesthetic content (as often happened in other similarly experimental African novels). But Bello’s efforts would eventually give rise to a more sophisticated tradition of novel writing in Hausa. His experimentation found its most successful expression in Amos Tutola’s English-language novel The Palm-Wine Drunkard (1952). The Oral narratives understudy Include: Falsehood is More Profitable than Truth (translated from Hausa) One cannot Help an Unlucky Man (translated from Hausa) Wacici and her Friends (translated from Kikuyu). The selected oral narratives experiences displayed injustice of belief in telling lies and trickery, jealousy against the natural beauty and the bad lack aspect due to ignorance and inability to make right judgment for personal benefit. The study was aimed at unfolding antisocial behaviour that existed in in Africa as portrayed in the selected oral narratives. The expression of reaction and action taken to bring social order were represented in the Hausa selected narratives. The study used qualitative method and textual analysis to arrive at the injustice and measures used to condemn injustice as a means to preserve social order

Inter-State Complaints under the African Human Rights System: a Breeze of Change?

Abstract An inter-state procedure is provided for explicitly in the 1981 African Charter on Human and Peoples’ Rights, on which the African regional human rights system is based, but the mechanism remains underused. Exploring the question why such a small number of inter-state cases have been submitted under the Africa system, the article points to the influence of a general culture of non-intervention and a preference for non-confrontational dispute mechanisms among African States; the existence of alternative channels to resolve cases involving massive or widespread violations cases; African States have over the years placed growing confidence in the icj; the delays associated with the drc decision; and a pervasive ignorance of inter-state complaints processes under the African system. To overcome some of these impediments, the article notes, inter-states cases may be masked as cases brought by individuals or ngo s whose interests overlap with those of States.

Inter-States Disputes Under the Inter-American Human Rights System

Abstract Under the inter-American human rights system, inter-State disputes seem largely irrelevant. Such irrelevance contrasts with the European human rights system, where the amount of inter-State disputes is significant (and growing), and is similar to the African human rights regime, where there is a very low number of inter-State disputes. In more than four decades since the entry into force of the American Convention on Human Rights, there are only two inter-State disputes brought before the Inter-American Commission on Human Rights—one of the two bodies that, along with the Inter-American Court, make up the regional human rights system. The virtual inexistence of inter-State complaints, however, does not mean an absence of human rights disputes among members of the Organization of American States (oas). In fact, States resort to other mechanisms to process their disputes. Therefore, to explore how inter-States disputes actually operate under inter-American human rights law, it is necessary to broaden the view and look beyond the specific mechanism of inter-State communications established in the American Convention. This article discusses the two inter-State communications that the Inter-American Commission on Human Rights has so far examined, and analyses other mechanisms—typically, advisory opinions by the Inter-American Court—that serve as a substitute for inter-State communications. The article shows how oas States use advisory opinions as a covert inter-State dispute mechanism and argues that the Inter-American Court should articulate a clear set of admissibility standards to address this practice.

When political liberalism meets a communalist worldview: John Rawls and African view of human rights

Since the publication of his A Theory of Justice (TJ), John Rawls has revolutionized political philosophy in many ways, including the understanding of human rights. His theory of rights in TJ is drawn from a comprehensive liberal doctrine and is limited to the domestic society. However, his account of human rights developed in his last major work, The Law of Peoples, claims to be politically free standing, following the model of his Political Liberalism. For Rawls, human rights are necessary conditions for social cooperation. They are meant to serve as one of the principles of foreign policy of the reasonable liberal peoples, in their relations with non-liberal societies. Rawls believes that his category of human rights cannot be rejected by non-liberal peoples as parochial or particular to the Western tradition, because they are not based on any comprehensive doctrine. On the other hand, however, many African scholars have dismissed the current international human rights regime on the account of being too liberal, and not corresponding to the African communalist worldview. It is in that regard that The African Charter on Human and Peoples’ Rights and subsequent African human rights instruments were adopted to dress a list of human rights that take into account African history, civilization, and values. Thus, in three main sections, this article examines whether the Rawlsian account and the African view of human rights can enrich each other, or whether they are completely opposed.

Deploying the African Union’s Legal Mechanisms for the Effective Protection of Internally Displaced Women from Sexual Violence

The problem of internal displacement is a regional challenge and cannot be left in the hands of only one country. A critical question that this paper will attempt to answer is: Does the adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa hold the key to the protection and assistance of conflict-induced female IDPs in Nigeria? An attempt is made to provide answers to whether human rights treaties, in fact, make any impact on the lives of people. The conclusion shall examine how African regional human rights treaties and the African Commission’s special mechanisms could be harnessed to provide the basis for systematic and coordinated action in the protection of female conflict-induced IDPs in Nigeria from sexual violence.

Editorial

This issue of the African Human Rights Law journal (AHRLj) appears as the world celebrates 75 years since the adoption of the United Nations (UN) Declaration of Human Rights (Universal Declaration). The Universal Declaration did not include a 'right to development'; the closest it has come was to provide, in article 22, that 'everyone' is entitled to the realisation of 'the economic, social and cultural rights indispensable for his dignity and the free development of his personality'.

A Comparative Analysis of the Right to Protest Under the Nigerian Public Order Act and the South African Regulation of Gatherings Act

The handling of the #EndSARS protests in 2020 and 2021 by the Nigerian authorities has once again brought to the fore the restriction of the right to protest in Nigeria, and in Africa as a whole, and the need to compare the right to protest under various African jurisdictions. Protest can be the catalyst for positive change in the social, political, economic and cultural life of a country, and therefore the right to protest is guaranteed under international, regional African and domestic human rights legal frameworks. In Nigeria, the Public Order Act of 1990 is designed to give effect to the provisions of the Constitution in terms of the appropriate and peaceful conduct of protests. Likewise in South Africa, the Regulation of Gatherings Act 205 of 1993 regulates the holding of public gatherings and demonstrations, in alignment with the provisions of the Constitution. This paper applies doctrinal methodology to undertake a comparative study of the right to protest under the Nigerian Public Order Act and the South African Regulation of Gatherings Act, specifically because South Africa has seen a groundswell of protests in the past few years with minimal restrictions. This paper finds that despite some shortfalls in the Regulation of Gatherings Act, it is a more potent law than the Public Order Act in ensuring the right to protest. This paper further argues that the robustness of the Regulation of Gatherings Act could serve as a template for strengthening the Nigerian Public Order Act to fully guarantee the right to protest in Nigeria.

Sexual Orientation and the Criminalisation of Private Consensual Sexual Acts Between Adults of the Same Gender

Abstract As of September 2023, consensual same-sex sexual acts between adults (for both men and women) in private were criminalised in a total of 67 United Nations (UN) member States. Most of these States were in Africa, a continent of more than 1.4 billion people, where more than 30 out of Africa Union’s 55 States criminalised consensual same-sex sexual acts between adults in private. The justification advanced in favour of criminalisation is that non-heterosexual sexual acts do not conform to the moral, cultural or religious views of a section of society. In some States, consensual same-sex sexual acts between adults in private were punishable by a maximum penalty of death or long prison sentences. The African Charter on Human and Peoples’ Rights (the Charter) and several protocols adopted under the Charter do not prohibit explicitly discrimination based on real or perceived sexual orientation, gender identity and sexual characteristics. Thus, sexual orientation has remained on the margins of the African regional human rights system and has also remained largely outside the consideration of the African Commission (and the African Court) on Human and Peoples’ Rights, the limited jurisprudence is mainly between negative and retrogressive. This article examines the criminalisation of private, consensual same-sex relations, sexual or affective, between adult persons of the same gender or sex in Africa with particular reference to Uganda’s Anti-Homosexuality Act 2023 and its impact on human rights including respect for life, privacy, human dignity, integrity, liberty and security of the person, equality and non-discrimination, health, as well as freedom of association, expression and peaceful assembly.

‘Human rights cities’ in Africa? Rights as resources for urban governance in the Global South

AbstractThis article considers the use of human rights law as a resource for urban governance by African cities, thereby supplementing the growing literature on ‘human rights cities’ that has thus far focused on the experiences of cities in the Global North. It considers the motivations for and impact of human rights city initiatives, before taking a closer look at reported instances of rights invocation in and by African cities and pointing to factors that explain the seemingly limited traction of human rights law for urban local governments on the continent. The article shows that incomplete and politically contested devolution arrangements across African constitutional systems have combined with pressures pertaining to the domestic enforceability of socio‐economic rights to structure a somewhat cautious and fraught, but nevertheless promising, relationship between local governments in African cities and human rights law.

Monitoring second-order compliance in the African human rights system

This article examines the mechanisms and instruments employed by the three main regional African human rights bodies – the African Commission and African Court on Human and Peoples’ Rights and the African Children’s Rights Committee – to monitor compliance with their decisions and judgments. Based on the assumption that second-order compliance monitoring contributes to greater effectiveness of human rights institutions and increased compliance with their pronouncements, we discuss the monitoring tools used by the institutions themselves as well as the roles of political monitoring and monitoring by civil society. Based on a stock-taking exercise we find that all three African human rights bodies still have much room for improving both the quantity and the quality of their monitoring instruments and processes. Acknowledging that the three bodies may to some extent be legally and politically constrained with respect to the use of some of these, and recognising that the AU’s political organs mostly abstain from exercising the second-order compliance monitoring functions assigned to them, the article argues that civil society plays a critical role in contributing to such monitoring, a role that should be expanded upon and researched further.

The role of human dignity in the jurisprudence of the African Commission on Human and Peoples’ Rights

Human dignity is a concept that is often mentioned in core human rights treaties and national constitutions as the foundation of human rights. At its core it demands respect for the life and integrity of the human person, recognition of the equal worth of human beings and respect for their autonomy or self-determination. Many national and supra-national courtsalso use the concept to explicate the meaning and limitations of human rights. The constitutional court of Germany, South Africa and the European Court on Human Rights are notable in this regard. In recent years, the US Supreme Court has also increasingly used the concept in resolving hard cases and expanding the scope constitutional rights. Though, the role andapplication of human dignity has received considerable scholarly attention, it is mainly confined to the European constitutional orders and the US constitutional system. With respect to regional human rights systems, scholars have largely focused on examining the role of human dignity in the jurisprudence of European Court of Human Rights and the Inter-AmericanCourt. As such, little is known about what role human dignity is playing or could play in the interpretation of rights in the African human rights system. This is alarming considering the poor status of protection of human rights and weak constitutional right jurisprudence in many countries of Africa. Accordingly, this article seeks to fill the lacuna by examining the role of human dignity in the African human rights system by exploring its place in religious and cultural value systems of different African societies.

Decriminalising vagrancy offences in Africa beyond the African Court’s Advisory Opinion: quo vadis?

The African Court on Human and Peoples’ Rights (African Court) advisory opinion in Pan African Lawyers Union on the compatibility of vagrancy laws with the African Charter on Human and Peoples’ Rights and other human rights instruments in Africa (PALU opinion) 1/2018 recommends that states amend or repeal vagrancy offences that criminalise the life-sustaining activities of many persons targeted by these laws. The Court’s main opinion is that states’ national laws and by-lawscontaining vagrancy offences are vague, overly broad and ambiguous, conferring broad discretion on the police for their enforcement and targets people in terms of their status, not their conduct. These laws violate articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights; articles 3 and 17 of the African Charter on the Rights and Welfare of theChild; and article 24 of the Protocol to the African Charter on the Rights of Women in Africa. The main opinion insufficiently addresses the colonial root of vagrancy. A separate concurring opinion elaborates on the margin of appreciation and good faith principle that allow states to formulate contextspecific answers to amend and repeal vagrancy offences. This article identifies the impact of the COVID-19 pandemic on petty offences enforcement and draws lessons from litigation such as Gwanda v The State and interventions from national human rights institutions such as the South African Human Rights Commission; as well as guidance from the African Commission on Human and Peoples’ Rights Principles on Decriminalisation of Petty Offences in Africa (2017). It is argued that specific institutional and non-material interventions are needed to bring the systemic change required, in tandem with the banning of vagrancy offences, for cities that promote inclusion and sustainable development for all.

Framing a human rights approach to communication surveillance laws through the African human rights system in Nigeria, South Africa and Uganda

Today, in any society where crime is possible, communication surveillance is a necessary evil. This is because technologies now offer faster means of preventing crime while they are also capable of undermining the right to privacy. However, protecting privacy should not be mutually exclusive of ensuring public safety. This article argues that while communication surveillance may be permissible under narrow and limited circumstances, the laws made to regulate it in Nigeria, South Africa andUganda do not comply with international human rights standards. In demonstrating this, this article analyses the major laws in these countries alongside the various international human rights principles that must be complied with in framing a rights-respecting law on communication surveillance. The major contribution of this article is that communicationsurveillance laws can be designed in compliance with international human rights standards in the countries under focus. These include Nigeria, South Africa and Uganda carrying out specific legal reforms targeted at problematic laws on communication surveillance in order to bring them in line with international human rights standards. This can also be supportedby developing a more robust set of comprehensive guidelines through the African Commission and Human and Peoples’ Rights and ensuring that Nigeria, South Africa and Uganda embark on critical and strategic training for stakeholders involved in the enforcement and implementation of communication surveillance laws in these countries.

The Right to Bail in Seychelles: Implementing Article 9(3) of the International Covenant on Civil and Political Rights

Abstract Seychelles acceded to the International Covenant on Civil and Political Rights (iccpr) in 1992. Article 9(3) of the iccpr provides for circumstances in which an accused may be released on bail. Article 18(7) of the Constitution of Seychelles (2008) provides for the grounds on which a court may decline to release an arrested or accused person on bail. Article 48 of the Constitution requires Seychellois courts to, inter alia, refer to international treaties and the practice/jurisprudence of international human rights bodies when interpreting constitutional rights. This article illustrates the drafting history of Article 9(3) of the iccpr and how it has been interpreted by the Human Rights Committee. It also highlights the right to bail under the African human rights system. Based on over 250 cases of the magistrate’s court, Supreme Court, Constitutional Court and Court of Appeal decided between 1998 and 2023, the article discusses the extent to which the courts’ jurisprudence complies with the practice and/or jurisprudence of the Human Rights Committee on the following issues: the right to bail, courts with jurisdiction to grant bail, factors courts consider in making bail decisions, burden of proof in bail matters, bail pending appeal and court’s power to revoke bail. It is argued, inter alia, that although the jurisprudence on bail substantially complies with the standards set by the Human Rights Committee, there are instances in which some of the courts’ decisions are contrary to these standards. The article recommends that courts should ensure that the jurisprudence on bail complies with the principles developed by the Human Rights Committee.

Hate Speech in the Equality Act Following the Constitutional Court Judgment in Qwelane v SAHRC

In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy.

Framing Climate Litigation in Individual Communications of the African Human Rights System: Claw-Backs and Substantive Divergences

Abstract Climate litigation is anticipated to continue expanding, especially related to the interface with the human rights of vulnerable populations and the adequacy of states’ efforts to adopt and implement climate laws. While the possibility of climate-related litigation is envisaged before the African Human Rights System (AHRS), there is no pioneering case on climate change at that level yet. Essential rights that may be relevant in climate change litigation in the AHRS are not yet tested and often have claw-back clauses that have limits imposed by national legislation. Also, climate change commitments that may link to human rights are under a regime outside the AHRS. These developments may generate conceptual divergences regarding a state’s sovereign right and climate justice in future climate litigation within the AHRS. This article explores the potential application of claw-back clauses and divergent views on states’ sovereign rights and climate justice in climate change instruments that may feature in individual communications at the AHRS.

Applying a Human Rights Lens to Poverty and Economic Inequality: The Experience of the South African Human Rights Commission

The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how it has sought to apply its constitutional and legislative mandates to various manifestations of poverty and economic inequality in South Africa. It focuses on three broad areas of the Commission’s work with a view to identifying its achievements as well as some of the key challenges it has faced. Based on this analysis, the article concludes by reflecting on the broader implications of the experience of the Commission for fourth branch institutions, specifically national human rights institutions, that apply a human rights lens to poverty and economic inequality.

In someone else’s words: Judicial borrowing and the semantic authority of the African Court of Human and Peoples’ Rights

AbstractSince its first judgment on the merits in 2013, the African Court of Human and Peoples’ Rights (the African Court or ACtHPR) jurisprudence has bourgeoned. In building this jurisprudence, the African Court has borrowed significantly from the case law of the European Court of Human Rights and the Inter-American Court of Human Rights. This article empirically maps judicial borrowing in the jurisprudence of the African Court and connects this practice to the theoretical framing of the semantic authority of interpretive actors in international law. The article argues that judicial borrowing allows the African Court to borrow the semantic authority of these more established actors in the field of international human rights law. The practice has allowed the Court to boost its interpretive claims. The article posits that the Court is simultaneously internalizing external references: it transforms them into an internal part of its jurisprudence. Therefore, the African Court is transforming what was initially the semantic authority of its homologues in Strasbourg and San José, into assertions of its own semantic authority. This transformation allows the Court to assert itself as the central authority for the interpretation of human rights in Africa. These findings shed new light onto wider scholarly debates on the characteristics of African human rights jurisprudence in the field of international human rights law.

CLARIFYING THE POWER OF THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION TO TAKE STEPS TO REDRESS THE VIOLATION OF HUMAN RIGHTS: A DISCUSSION OF South African Human Rights Commission v Agro Data CC [2022] ZAMPMBHC 58

This case note proceeds as follows. First, it sets out the powers of the Commission in terms of the Constitution and the South African Human Rights Act (40 of 2013) (the Act), before turning to a discussion of Agro Data and considering the implications that this decision may hold for the power of the Commission, specifically as far as it relates to taking “steps to secure redress where human rights have been violated”.